Alpha Holder, Jr. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 13, 2012
• Docket: 45A03-1111-CR-516
• Status: Unpublished

Opinion

FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jul 13 2012, 9:09 am any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARCE GONZALEZ, JR. GREGORY F. ZOELLER Dyer, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ALPHA HOLDER, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1111-CR-516 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Clarence D. Murray, Judge Cause Nos. 45G02-0810-FC-142, 45G02-0904-FC-40

July 13, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Alpha Holder, Jr., appeals as inappropriate the nine years of executed time the court

ordered him to serve for committing Class C felony fraud on a financial institution1 and being

an habitual offender.2 We affirm.

FACTS AND PROCEDURAL HISTORY

Holder stole a checkbook from Tameka Henley, wrote a check to himself without

Henley’s permission, and forged her signature on the check. On April 2, 2009, Holder tried

to cash it. Later that day, the police arrested Holder, who was on probation.

The State charged Holder with Class C felony forgery,3 Class C felony fraud on a

financial institution, and Class D felony theft.4 Holder pled guilty to Class C felony fraud on

a financial institution, admitted he was an habitual offender,5 and admitted violating

probation.

Holder’s plea agreement provided he would serve six years in the Department of

Correction (DOC) for committing Class C felony fraud on a financial institution and another

three years for being an habitual offender. Holder requested the court order his sentence

served at a local community corrections facility where he could be close to his family, retain

1 Ind. Code § 35-43-5-8. 2 Holder refers to a twelve-year sentence throughout his brief, but his sentence for his conviction of fraud on a financial institution, under Cause No. 45G02-0904-FC-00040, is only nine years – six years for the Class C felony, enhanced by three years for his status as an habitual offender. The other three years to which Holder refers are a result of the revocation of the probation he was serving under Cause No. 45G02-0810-FC-00142. While Holder’s brief suggests the order he serve three years of his suspended sentence in Cause No. 45G02- 0810-FC-00142 was inappropriate, that allegation of error was waived for failure to make a cogent argument, see Ind. Appellate Rule 46(A)(8)(a) (requiring cogent argument), because Holder did not present the appropriate standard of review or argue the trial court erred by revoking his probation and ordering him to serve the remainder of his sentence. 3 Ind. Code § 35-43-5-2. 4 Ind. Code § 35-43-4-2. 5 Ind. Code § 35-50-2-8. 2 his job through a work release program, and continue his education. At the sentencing

hearing, the court noted Holder was an habitual offender with a “horrendous” criminal

record. (Tr. at 39.) The only mitigating factor the court found was his admission of guilt.

The court imposed a nine-year sentence executed in the Department of Correction (DOC).

DISCUSSION AND DECISION

An appellate court “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” Ind. Appellate Rule

7(B). In our review, “we must and should exercise deference to a trial court’s sentencing

decision . . . .” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). “The defendant

has the burden of persuading us that his sentence is inappropriate.” King v. State, 894 N.E.2d

265, 267 (Ind. Ct. App. 2008).

Holder acknowledges the nature of his offense warrants punishment, but he claims the

DOC is not an appropriate location to serve his sentence because he was accepted into

community corrections and his offense was not violent.6 Holder also contends his poor

health, service in the Army, education, and relationship with his family illustrate a character

that makes the execution of his sentence in the DOC inappropriate.

The “location where a sentence is to be served is an appropriate focus for application

of our review and revise authority.” Id. However, “it will be quite difficult for a defendant

6 The sentence range for a Class C felony is two to eight years, with an advisory sentence of four years. Ind. Code § 35-50-2-6. The trial court imposed the nine-year sentence required by Holder’s plea agreement; thus, Holder cannot challenge the length of his sentence. Allen v. State, 865 N.E.2d 686, 689 (Ind. Ct. App. 2007). 3 to prevail on a claim that the placement of his sentence is inappropriate[,] because the

question under Appellate Rule 7(B) is not whether another sentence is more appropriate;

rather the question is whether the sentence imposed is inappropriate. ” Id. at 267-68

(emphasis in original). We now turn to the nature of his offense and his character to

determine if his placement is inappropriate.

As for the nature of the offense, Holder stole Henley’s checkbook from her purse,

wrote a check to himself without Henley’s permission, forged her signature on it, then tried

to cash it. Although Holder’s crime is not particularly heinous, we cannot say the placement

is inappropriate in light of the crime.

To support his contention his character warrants a change in placement, Holder

presented evidence of his health issues, which include diabetes, congestive heart problems,

and asthma. Holder also claims his service in the Army, education, and relationship with his

family illustrate a character that makes the execution of his sentence in the Department of

Correction inappropriate. However, when we consider the character of the offender, “one

relevant fact is the defendant’s criminal history.” Holloway v. State, 950 N.E.2d 803, 807

(Ind. Ct. App. 2011). The significance of criminal history depends on the “gravity, nature,

and number of prior offenses in relation to the current offense.” Id.

Holder’s extensive criminal history includes fifteen prior felony convictions, all of

which relate to theft, fraud, or forgery. (Tr. at 39, App. at 348-53.) Holder is an habitual

offender who was on probation when he was arrested for the instant offense. In light of

Holder’s criminal history, we will not disturb the decision to place Holder in the DOC. See

4 Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007) (continuous criminal record

makes placement in the DOC appropriate).

Based on the nature of his offense and his character, we are not convinced Holder’s

placement in the DOC is inappropriate. Accordingly, we affirm.

Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.